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2021 (8) TMI 324 - AT - Income TaxAssessment u/s 153A - Addition u/s 68 - penny stock purchases - unabated assessment year - incriminating material found in search or not? - HELD THAT - The undisputed facts are that the return of income was filed by the assessee for the instant year on 06.09.2010 declaring an income - Search and seizure action was conducted on 09.04.2015 and thus on the date of search, the assessment has attained finality and is an unabated assessment on the date of search. We find merit in the arguments of the Ld. A.R. that in the case of unabated assessment year, addition can only be made on the basis of incriminating material found during the course of search and not otherwise. In the present case, we have noted that no incriminating material was found during the course of search in relation to the purchase and sale of penny stocks and the authorities below have relied on the general investigation that assessee has made purchase and sale in penny stocks on the basis of documents which are already on records and made huge addition of bogus long term capital gain. AO had discussed the modus operandi of the penny stock companies and operators involved in carrying out the purchase and sale of shares. However, nowhere the AO has referred to incriminating material found during the course of search in relation to purchase and sale of shares. We have also examined the documents found during the course of search by the search team as furnished by the ld DR in the form of paper book but find that these documents only contained the details of sale of shares only - The case of the assessee is squarely covered by the decision of the co-ordinate bench of the Tribunal Smt. Kalpana Mukesh Ruia 2021 (1) TMI 93 - ITAT MUMBAI - Decided in favour of assessee. Addition u/s 68 - unexplained cash credit by treating the sale proceeds yielding long term capital gain on sale of shares as non genuine - HELD THAT - Long term capital gain on the sale of shares of M/s. Splash Media Infra Ltd. is not a bogus capital gain as the AO has solely relied on the report of investigation/search team and has not carried out any further verification on the basis of documents furnished by the assessee. Similarly, the position of long term capital gain earned on the sale of shares of M/s. Comfort Intech Ltd. is same as the assessee has filed all the necessary evidences before the AO and AO has failed to carry out any further investigation to prove that the long term capital gain earned by the assessee is bogus and fictitious. - Decided in favour of assessee.
Issues Involved:
1. Jurisdiction of the AO to frame assessment under section 143(3) read with section 153A of the Act. 2. Treatment of long-term capital gains as non-genuine and bogus transactions. 3. Disallowance of the claim under section 10(38) of the Act for long-term capital gains on the sale of shares. 4. Addition of sale value of shares under section 68 of the Act without allowing deduction for purchase cost. 5. Addition of alleged commission paid on bogus share transactions under section 69C of the Act. Issue-wise Detailed Analysis: 1. Jurisdiction of the AO to Frame Assessment under Section 143(3) read with Section 153A of the Act: The primary issue raised by the assessee was whether the AO had the jurisdiction to make additions in the absence of any incriminating material found during the course of the search. The assessee argued that since the assessment for AY 2010-11 was unabated on the date of the search (09.04.2015), no additions could be made without incriminating material. The CIT(A) dismissed this argument, citing that incriminating evidence was found, including statements recorded during the search. However, the Tribunal found that no incriminating material related to the purchase and sale of shares was discovered during the search. The Tribunal referenced the decision in the case of Ms. Kalpana Ruia & ors. and held that additions in unabated assessments can only be made based on incriminating material found during the search. Consequently, the Tribunal ruled that the additions made under sections 68 and 69C were without jurisdiction and directed their deletion. 2. Treatment of Long-term Capital Gains as Non-genuine and Bogus Transactions: The AO treated the long-term capital gains earned by the assessee from the sale of shares of Comfort Intech Ltd. and Splash Media & Infra Ltd. as non-genuine and bogus transactions. The AO cited the modus operandi of penny stock companies and the involvement of the assessee in such transactions. The Tribunal, however, noted that the assessee had provided all necessary documentation, including D-mat accounts, contract notes, and payment proofs through account payee cheques. The Tribunal also referenced a coordinate bench decision which held that the shares of Splash Media & Infra Ltd. were not penny stocks. The Tribunal concluded that the AO had not carried out any further verification to substantiate the claim that the long-term capital gains were bogus. 3. Disallowance of the Claim under Section 10(38) of the Act for Long-term Capital Gains on the Sale of Shares: The AO disallowed the assessee's claim under section 10(38) for exemption on long-term capital gains from the sale of shares, treating the gains as bogus. The Tribunal, however, found that the assessee had provided sufficient evidence to substantiate the transactions, including the purchase and sale of shares through recognized stock exchanges and payment of Securities Transaction Tax (STT). The Tribunal held that the AO's reliance on general investigations and reports without specific incriminating evidence was insufficient to disallow the exemption claim. 4. Addition of Sale Value of Shares under Section 68 of the Act without Allowing Deduction for Purchase Cost: The AO added the entire sale proceeds of the shares under section 68 as unexplained cash credits without allowing the deduction for the purchase cost. The Tribunal found that the assessee had provided adequate documentation to support the purchase and sale transactions. The Tribunal ruled that the addition under section 68 was unjustified and directed its deletion. 5. Addition of Alleged Commission Paid on Bogus Share Transactions under Section 69C of the Act: The AO made an addition for alleged commission paid on bogus share transactions under section 69C. Since the Tribunal had already ruled that the long-term capital gains were genuine and the additions under sections 68 and 69C were without jurisdiction, it consequently directed the deletion of the addition for alleged commission as well. Conclusion: The Tribunal allowed the appeals of the assessee for all the assessment years (2010-11, 2011-12, 2013-14, and 2014-15). It ruled that the additions made by the AO were without jurisdiction and unsupported by incriminating evidence. The Tribunal directed the deletion of all additions made under sections 68 and 69C and upheld the assessee's claim for exemption under section 10(38) for long-term capital gains.
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